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62 d Congress, ) HOUSE OF REPRESENXATIVES. J Report 
M Session. \ { No. 239 





TERMS OF PRESIDENT, VK'E PRESIDENT, SENATORS, 
AND REPRESENTATIVES. 


January 18, 1912.—Referred to the House Calendar and ordered to be printed. 



Mr. Henry of Texas, from the Committee on the Judiciary, sub¬ 
mitted the following 


REPORT. 


[To accompany H. J. Res. 204.] 


The Committee on the Judiciary, to whom was referred House 
joint resolution No. 204, proposing an amendment to the Constitu¬ 
tion of the United vStates, have given the same due consideration and 
favorably report the same, embodying the exact language in which 
the author introduced it. 

Should the joint resolution be ratified by the requisite number of 
States, it will become a substitute for Article XH (amendment 12) 
of the Constitution, as the same now exists. 

The joint resolution is reported in this form because it involves a, 
change of Article XII of the Constitution wherein the 4th (lay of 
MarclC^ only appears in all its provisions. 

The resolution here reportecl embraces five proposed changes in 
our system of constitutional government. • 

First. Beginning with the Sixty-third Congress, the term of office 
of the President and Vice President chosen at the election (of No¬ 
vember, 1912) immediately preceding shall continue until the last 
Thursday of April, 1917, at noon; and the last Thursday of April, at 
noon, shall thereafter be the commencement and termination of the 
official term of the President and Vice President. 

Second. Upon the ratification of the proposed amendment, the 
second Tuesclay of January, at noon, shall constitute the commence¬ 
ment and termination of the official term of the Senators and Mem¬ 
bers of the House of Kepresentatives. The Congress in existence 
when the Members of the first House of Kepresentatives are elected 
(which is always the short session immediately following the general 
election for Representatives in Congress) after the ratification of this 
amendment shall hold no annual session after such election, and such 
short session of Congress, as now i)rovided for, shall terminate on the 



. 







. 2 


TERMS OF PRESIDENT^ VICE PRESIDENT^ ETC. 



second Tuesday of tlie January immediately iollowing. J he Senators 
whose existing term would otherwise expire on the 4th ol day March 
next succeeding the day on which the term of the first (.ongress shall 
commence after the ratification ol this amendment shall continue in 
ollice until their successors are api)ointed or elected. 

Third. When the ])roposed amendment becomes operative, Congress 
shall assemble at least once in each year on the second Tuesday ol 
January, unless Congress shall by law appoint a different day. 

Fourth. In the proposed amendment the time lor an election of a 
President, when that duty devolves upon the House, is extended to 
the last Thursday in April. 

Fifth. In the last two sentences of the })roposed amemlment C'on- 
gress is given power to provide by law for the danger ol the death 
of the President-elect, or of the death of the President-elect and \ice 
President-elect, before the beginning of their terms of office, as \vell 
as for the case of failure to elect such officers. The joint resojution 
liere leported is indicated by showing the present Article XII in 
roman type aiul the proposed changes in italics, and is.as follows: 


JOINT RESOLUTION Proposing an amendment to the Constitution of the United States. 

Resolved hy the Senate and House of Representatives of the United States of America 
in Congress assembled {two-thirds of each House concurring therein), That the following 
article i? proposed as an amendment to the Constitution of the United States, which, 
when ratified by the legislatures of three-fourths of the several States, shall be valid 
to all intents and purposes as a part of the Constitution and as a substitute for Article 
XII thereof: 

“Article —. 


‘^Section /. Beginning with the Sixty-third Congress, the term of office of the President 
and Vice President chosen at the election immediately preceding shall continue until the 
last Thursday of April, in the year nineteen hundred and seventeen, at noon, and the last 
Thursday of April, at noon, shall thereafter he the commencement and termination of the 
official term of the President and Vice President. 

^‘Sec. 2. The second Tuesday of January, at noon, shall constitute the commencement I 
and termination of the official term of the Senators and Members of the House of Repre¬ 
sentatives. The Congress in existence when the Members of the first House of Representa¬ 
tives are elected ajter the ratification oj this amendment shall hold no annual session ujter 
such election, and its term shall expire on the second Tuesday of the January immediately 
Jollou'ing. The Senators whose existing term ivould otherwise expire on the Joiirth day 
of March next succeeding the day on which the term of the first Congress shall commence 
after the ratification of this amendment shall continue in office until their successors are 
appointed or elected^. Congress shall assemble at least once in each year, and such meeting 
shall be on the second Tuesday in January, unless Congress shall by laiv appoint a different 
day. 

“Sec. 3. The electors shall meet in their respective States and vote by ballot for 
President and Vice President, one of whom, at least, shall not be an inhabitant of 
the same State with themselves; they shall name in their ballots the person voted for 
as President, and in distinct ballots the person voted for as Vice President, and they 
shall make distinct lists of all persons voted for as President and of all persons voted 
for as VTce President, and of the number of votes for each, which lists they shall sign 
and certify and transmit sealed to the seat of the Government of the United States, 
dii’ected to the President of the Senate; the President of the Senate shall, in the 
presence of the Senate and House of Representatives, open all the certificates, and ' 
the votes shall then be counted; the person having the greatest number of votes for 
President shall be the President, if such number be a majority of the whole num¬ 
ber of electors appointed; and if no person have such a majority, then from the per¬ 
sons having the highest numbers, not exceeding three, on the list of those voted for 
as President the House of Representatives shall choose immediately, by ballot, the 
President. But in choosing the President the votes shall be taken by States, the 
representation from each State having one vote; a quorum for this purpose shall 
consist of a Member or Members from two-thirds of the States, and a majority of all 
the States shall be necessary to a choice. And if the House of Representatives shall 


T)yi \ 

£'U .aU 






TERMS OF PRESIDENT, VICE PRESIDENT, ETC. 


3 


not choose a President, whenever the right of choice shall devolve upon them, before 
the last Thursday in April next following, then the Vice President shall act as Presi¬ 
dent, as in the case of the death or other constitutional disability of the President. 
The person having the greatest number of votes as Vice President shall be the Vice 
President, if such number be a majority of the whole number of electors appointed, 
and if no person have a majority, then from the two highest numbers on the list the 
Senate shall choose the Vice President; a quorum for the purpose shall consist of 
two-thirds of the whole number of Senators, and a majority of the whole number 
shall be necessary to a choice. Put no person constitutionally ineligible to the office 
of President shall be eligible to that of Vice President of the United States. In all 
cases not provided for by Article II, clause five, of the Constitution, ivhere there is no 
person entitled to discharge the duties of the office of the President, the same shall devolve 
upon the Vice President. The Congress may by law provide for the case where there is no 
person entitled to hold the office of President or Vice President, declaring what officer shall 
then act as President, and such officer shall act accordingly until the disability shall be 
removed or a President shall be elected.’’^ 

After carefully examining the phraseology of the amendment, an 
exact analysis of its purport and effect may be restated as follows: 

1. It extends the term of President and Vice President to the last 
Thursday of April, 1917, and such date shall thereafter be the begin¬ 
ning and termination of their term and the date of subsequent 
inaugurations. 

2. After that date Congress shall meet annually on the second 
Tuesday in January. And the second Tuesday in January shall be 
the beginning and termination of the official term of Senators and 
Ke])resentatives. This proposed plan leaves the biennial elections 
as they are now, to be lield in November, except in the State of 
Oregon, in June, and Maine and Vermont, in September. It seems 
inadvisable and impracticable to interfere with those dates as now 
established by the various State laws and constitutions. 

3. The short session of Congress which would occur immediately 
after the November election upon the adoption of this amendment 
is to be eliminated, and its term shall expire on the second Tuesday 
in January immediately following. Under the proposed plan there 
would be two annual sessions of/’ongress, each running from January 
as long as each session of Congress chooses to sit. No elections of 
Representatives will come between Congresses and no short session 
can ])ossibly arise to impede business, as is now inherent in the 
Constitution. 

4. It properly deals with the then existing terms of Senator® and 
Representatives and makes them conform to the new amendment 
and arrangement. 

5. It changes the 4th day of March, as now appears in Article XII 
of tile Constitution, to the last Thursday in April as the limit of time 
in which the House must elect a President when such duty devolves 
upon that body. 

6. And it gives Congress constitutional power to legislate as to the 
succession in cases where there is a vacancy on account of the death 
or inability of the President elect and Vice President elect between 
the casting of the electoral vote and the inauguration. There is a com¬ 
plete hiatus here, and should these officials die or become totally dis¬ 
abled between those dates there is now no authority for filling the 
vacancies during the ensuing four years from such disaster. 

7. The Congress as elected in November under this plan will count 
the electoral votes and declare the result of the presidential election. 
And the newly elected Congress would also elect the President, 
should that duty devolve on the House under the constitutional pro- 




4 TERMS OF PRESIDENT^ VICE PRESIPENT^ ETC. 

visions. Both these features are desirable in the readjustment of our 
system. 

It is certain that constitutional amendment is necessary to bring 
about all these changes, except the annual Convening of Congress, 
which can be fixed by statute or joint resolution. Under the amend¬ 
ment Congress may continue as many xlays from convening on the 
second Tuesday of January in each year as are desirable. And of 
vital importance is the fact that tli« Congress elected in November 
will begin work in the January following, when the new Speaker will 
be elected and the House organized. The House would never be 
without a regularly elected Speaker and officers if this amendment 
is ratified. There will be no congressional'campaigns between ses¬ 
sions of Congress to distract the Members. 

For humanity’s sake alone, if for no other reason, under our present 
method of inaugurating the Chief Executive, Congress should author¬ 
ize the American people, by the submission of this amendment, to 
render a verdict touching the establishment of a pleasant aiid suitable 
day for the great ceremony. This amendment will secure good 
weather for the great public function of the inauguration of the 
President and Vice President. This is not of so much importance as 
the lengthening of the short session, but it is idle to. say that it is of 
no importance. The gathering of the nation at the CapitaLof the 
United States and their presence on the peaceful assumption by the 
President of his new duties has become a school of patriotism in which 
men, women, and children of all parties ratify, confirm, and acclaim 
the verdict of the people. It brings the man home to the masses as 
their friend. It recognizes the greatness of the day which gives a 
new President to the greatest people on earth; and it makes the 
whole land feel that the President is its Chief Executive in time of 
peace and in time of war. While he takes the oath of office under the 
Constitution, those who witness it take an unspoken oath of allegiance 
to that great Constitution. 

Appended to this report will be found a table showing the meteoro¬ 
logical conditions on the days pertinent to the proposed changes, as 
well as official data showing disease and deaths at such periods. 

V The amendment curtails the term of the Members of the House in 
"existence at the first general election after its ratification by changmg 
the clay of the termination of said term and succeeding terms from the 
4th day of March to the second Tuesday of January. The reason for 
this change is obvious and well-nigh imperative. Under the present 
arrangement the House chosen in November does not begin its service 
for 13 months thereafter, although the members draw their salaries 
from the 4th of March next succeeding their election. During nine 
months after the election under the present plan there is a vacancy 
in the speakership and other offices of the House. The successors of 
Members are elected while the incumbents have yet four months to 
serve prior to the expiration of their terms on the 4th day of March, 
subseciuent to the general congressional elections. The passage of 
important measures is fre(|uently prevented by the certain termina¬ 
tion of the short session on the 4th of March. Many Representatives 
have their efficiency impaired at the short session, because their con¬ 
stituencies have refused to reelect them, and the people are often in 
contingencies represented by men thus defeated who do not reflect 
their views. V For instance, the Republicans carried the congressional 


TERMS OF PRESIDENT, VICE PRESIDENT, ETC. 


5 


elections in 1888 while the Democrats won in the elections of 1890, and 
yet both the Mills and McKinley Congresses continued to legislate for 
several months after their successors were chosen. The Democrats 
carried the congressional elections in 1910, and yet the Republicans 
thus defeated in November continued to legislate until March 4, 1911. 
If the lyoposed amendment is submitted and ratified, the Members 
elected in November would have two months to make j)reparations for 
protracted absence from home and the beginning of their service at the 
Capital. There would be no holiday adjournment. The month of 
December would not be practically wasted, as now. The House would 
not be a day without a speaker and officers, as is now the case for nine 
months. The Representatives would come “fresh from the people,” 
as our fathers intended, and withm two months inaugurate the settle¬ 
ment of issues upon which they were elected. 

And the House chosen in November would assist in counting the 
electoral vofe, as was done in the First Congress, and as the founders of 
the Constitution designed should be the case. In bringing about these 
changes it is beyond controversy that the desired result can not be attained 
except by curtailing, through constitutional amendment, the term of 
office of some future House of Representatives. It is certain that these 
reforms can not be instituted except by changing the organic law. 

If Article XII of the Constitution is to be amended, it is beyond 
all question that it should be so amended as to provide for the 
omitted case in which there may be no President or Vice President. 
These cases are more numerous and more likely than is generally 
realized. 

1. If .the President-elect should die, it is doubted by Story and 
all constitutional writers whether the provision for the death of the 
President would apply and whether an office not yet in existence 
would devolve upon the Vice President-elect. 

2. If no person should receive a majority vote for President, it is 
likely, under our present system of election, that there would be 
no majority cast for anyone for Vice President in the electoral 
college. 

3. There is no power granted by the Constitution* for Congress to 
provide by law who shall act as President in case of the death of 
both the President-elect and the Vice President-elect. We have 


lost three Presidents by assassination. Life i^ always uncertain. 
There is always real and serious danger that both the President-elect 
and the Vice President-elect may die or be disabled before they 
take office, and there should be power to provide by law for such a 
contingency. 

4. It is not at all impossible that we may see three or more strong 
parties in this country—parties so strong that no candidate either 
for President or Vice President may receive a majority of the votes 
in the electoral college. It may be possible, also, that both the Senate 
and House of Representatives may be so divided between these three 
or more parties that an election may be possible neither of a President 
nor Vice President. It is only in the defense of our own existence 
that the law should provide who shall act as President in such a 
contingency. Otherwise government would come to a standstill 
until the next election. Tlie courts only would continue. There 
would be no Executive. Congress could not be called together in 
special session. Laws could not be passed even at the next regular 


6 


TERMS OF PRESIDENT, VICE PRESIDENT,. ETC. 


session, because a bill could not be presented to the President as 
re((uired by the Constitution (Art. I, sec. 7, par. 2) before it becanie 
a law. The committee therefore added to Article XII the following: 

In all cases not provided for by Article II, clause 5, of the Constitution, where 
there is no person entitled to discharge the duties of the office of the President, the 
same shall devolve upon the Vice President. The Congress may by law provide for 
the case where there is no person entitled to hold the office of President or Vice 
President, declaring what officer shall then act as President, and such officer shall 
act accordingly until the disability shall be removed or a President shall be elected. 

The necessity for some provision has been repeatedly confessed 
and urged in debate as to presidential succession. 

In conclusion on this point we es])ecially emphasize two proposi¬ 
tions, but not in disparagement of the other considerations herein 
urged. 

First. The short session now necessary is an intolerable evil in our 
Government and should be eradicated by the ratification of this 
amendment. It can be remedied in no other way, and in great 
governmental emergencies Representatives should rise to the occa¬ 
sion and meet the appropriate requirements redounding to the benefit 
of future generations and ages. 

Second. The manifest hiatus in the Constitution rendering possible 
absolute chaos in Government for four years should be speedily 
cured by the adoption of this amendment before some great national 
calamity befalls our people by reason of the serious omission in the 
Constitution as herein pointed out. If Mr. Taft and Mr. Sherman 
had died or become disabled between the casting of the electoral vote and 
their inauguration in 1909, our Government would have been vnthout an 
Executive for the four ensuing years, ending on March J^, 1918. ' In this 
hour of peace, prosperity, and governmental virility let us take this 
necessary and appropriate step and submit the amendment to the 
respective States. 

The committee append hereto three luminous and interesting docu¬ 
ments of high value toward solving the question in hand. They are as 
follows: A report prepared for the Judiciary Committee by Hon. 
Richard Wayne Parker, at one time the distinguished chairman of the 
committee : a report prepared by Hon. William Henry Crain, an erudite 
and distinguished Member of Congress from Texas for many years; 
and a learned article published in the Forum of December, 1909, by 
Mr. J. Hampden Daugherty, an able member of the New York bar. 

Changing the date of inauguration is a great national issue and of 
vital concern to the entire population of the United States and shoidd 
not be lightly passed over by Congress. The committee is indebted 
to Hon. H. B. F. Macfarland, of Washington City, and his coworkers, 
‘^The National Committee on the Change of Inauguration Day,” 
composed of the governors of the respective States and 15 citizens of 
Wasnington City, for most valuable assistance, and those gentlemen 
are entitled to the thanks of this committee. Congress, and the entire 
country fo^ their unceasing work and splendid service in forming 
and concentrating sentiment for the change in the date of our great 
national ceremony. 

The committee believe the joint resolution should be passed and 
the amendment adopted, and so recommend. 


TERMS OF PRESIDENT, VICE PRESIDENT, ETC. 7 

Appendix A. 

[Hon. R. W. Parker’s report.] 

The subject lias uaturalh^ brought up the history of how March 4 
came to be adopted, what difficulties have been asceitained by 
exjierience, and what various remedies might be recommended, with 
their advantages and disadvantages. 

Tlie discussion as to the day on which the inauguration of the 
Pi'esident should be celebrated has excited public interest and involves 
questions of graver importance than the comfort of the crowds who 
gather upon that day or than the risk to the President himself by 
exposure to cold and stormy weather. 

It has been often suggested as a remedy that Congress should meet 
in March following the election. The farmer^s love tor his crops made 
this impossible in the beginning of our Nation, when Congress was 
made up of farmers. More recently, and since the Capital was estab¬ 
lished at Washington, (Mngress has also had to consider the great heat 
of the weather in that place during the late spring and the summer, 
and for these reasons there has been an unconquerable repugnance to 
beginning the sessions of (Mngress in March. 

It is of histoi'ical interest to see how the present state of affairs came 
about. We get little information from the Constitution itself. That 
instrument is strangely silent upon the great question of how it was 
to be put into operation. It tells us that it shall go into effect when 
it shall have been ratified by the conventions of nine States (Art. 
VII): 

The ratification of the conventions of nine States shall be sufficient for the estab- 
ishment of this Constitution between the States so ratifying the same. 

It declares, also, in Article I, section 4, that— 

The times, places, and manner of holding elections for Senators and Representatives 
shall be prescribed in each State by the legislature thereof— 

Subject to change by Congress; that the Congress shall assemble 
at least once in every year, and that— 

such meeting shall be on the first Monday in December, unless they shall by law 
appoint a different day. 

So far it seems plain that after nine States shall have ratified the 
Constitution by their conventions, each State might hold an election 
for members of Congress, the legislators would choose Senators, and, 
unless otherwise provided by law. Congress would meet on the first 
Monday in December thereafter. It would seem as if the Govern¬ 
ment of the United States under the new Constitution was expected 
to begin on that day, so far as that Constitution speaks. 

But the place of meeting is left absolutely undefined by the Con¬ 
stitution. 

There is still more uncertainty and difficulty under the terms of 
the instrument about the election of a President. By Article II, 
section 1, each State was to appoint the electors in such manner as 
the legislature might direct, and the Congress might determine— 

the time of choosing the electors and the day on which they shall give their votes, 
which day shall be the same throughout the United States. 

Until Congress should exist and should fix the time for cjioosing 
electors, the States could probably proceed to make that choice 


8 


TEEMS OP PEESIDENT^ VICE PEESIDENT^ ETC. 


without limitation. But the day on wliich the electors so chosen 
should meet and yote was to be the same within the United States 
and could not be determined except by Congress. 

IIow this was to be done when there was as yet no Congress, and 
how then the first election of the President was to be held, are not 
gathered from the Constitution. And whether tliis time could be 
fixed for choosing a President by concurrent resolution of the two 
Houses, or whether the States sliould take the responsibility of pro¬ 
ceeding with the meeting of the electors, each for themselves, would 
likewise seem to be a question of doubt. However, with the Consti¬ 
tution alone to guide us, it would be supposed that the electors would 
proceed to hold their meeting in the several States at such time as 
the States should think proper, and that the clause of the Constitution 
just recited, that Congress should fix the day of election, would be left 
in abeyance until there should be a Congress, including a President, to 
make this regulation. 

It is in this manner that one would suppose that the new Govern¬ 
ment would have been formed under the Constitution. It was not 
thus formed. It did not go into effect upon the first Monday in 
December, but upon the first Wednesday in March. The day for the 
choosing of electors—that is, the election day—as well as the day for 
the meeting of the electors, and the day and place for the first meeting 
of Congress and for the establishment of the new Government were 
not fixed by the Constitution itself, nor by the several States, nor by 
the new Congress, but by an outside authority—the Congress of the 
old Confederation. 

By tlie Articles of Confederation it had been provided that 
those articles should be perpetual, and that no alteration thereof 
should be made unless it should be agreed to in a Congress of the 
United States and be afterwards confirmed by the legislatures of 
all the several States. The Constitutional Convention of 1787 was 
therefore called under a resolution of the old Congress recommending 
a convention of delegates which should consider and report to that 
Congress a proposed revision of the Articles of Confederation, so 
that tlie alterations and new provisions so reported should be agreed 
to in a Congress and confirmed by the States. 

Thus the resolution pursued carefully the mode of amendment and alteration 
provided by the Articles of Confederation, except that it interposed a convention 
for the purpose of originating the changes to be proposed in the existing form of Gov¬ 
ernment, adding, however, the great general purpose of rendering the Constitution 
adequate to the exigencies of government and the preservation of the Umon. (Con¬ 
stitutional History of the United States, George Ticknor Curtis, vol. 1, p. 245.) 

The convention, as is well known, went much further than was 
proposed by this resolution of the Congress of the Confederation. 
It reported a Constitution which was a‘revolution, and was to take 
the place of the Articles of Confederation, and was to be adopted 
by conventions of the people. It was also recognized that so radical 
a change might not obtain the assent of all the States, and it was 
therefore provided that this new Constitution should go into effect 
u])on the ratification by nine States. 

Article VII. The ratification of the conventions of nine States shall be sufficient 
for the establishment of this Constitution between the States so ratifying the same. 

At the same time the conservative men who drew the new Consti¬ 
tution desired that this great change should be instituted with the 


TERMS OF PRESIDENT^ VICE PRESIDEXT, ETC. 9 

assent of the old Government ratlier than by way of revolution. It 
was well pointed out by Curtis (vol. 1, p. 246): 

For the wise precedent, thus established, of placing the formation of a new Govern¬ 
ment under the direct sanction of the old one, the people of this country are indebted 
chiefly to Hamilton. Nothing can be more unfortunate in any country than the 
necessity, or the rashness, which sweeps away an established constitution before a 
substitute has been devised. True liberty has gained little in any age or country 
from revolutions which have excluded the possibility of seeking or obtaining the 
assent of existing power to the reforms which the progress of society has demanded. 
******* 

In the days when the Confederation was tottering to its fall, when its revenues had 
been long exhausted, and when its Congress embraced, in its actual attendance, less 
than 30 delegates from only 11 of the States, it would have been the easy part of a 
demagogue to overthrow it by a sudden appeal to the passions and interests of the 
hour as the first step to a radical change. But the great man, whose mature judgment 
and energetic youth, trained in the school of Washington, had been devoted to the 
formation and establishment of the Union, knew too well that if its golden ford were 
once brqken no human agency could restore it to life. He knew the value of habit, 
the respect for an established, however enfeebled, authority; and while he felt and 
insisted on the necessity for a new Constitution and did all in his power to make the 
country perceive the defects of the old one, he wisely and honestly admitted that the 
assent of Congress must be gained to any movement which proposed to remedy the evil. 

Accordingly, when the convention had agreed on the form of the 
proposed Constitution, they reported it to the Congress of the Con¬ 
federation, and shortly before their adjournment adopted a resolu¬ 
tion, on September 17, 1787, which left the old Congress in full con¬ 
trol of the situation and of starting the wheels of the new Government. 

Resolved, That it is the opinion of this convention that as soon as the conventions 
of nine States have ratified this Constitution, the United States in Congress shall fix 
a day on which electors shall be appointed by the States which shall have ratified the 
the same, and a day on which the electors shall assemble to vote for President, and 
the time and place for commencing the proceedings under this Constitution; that after 
such publication the electors should be appointed and the Senators and Representa¬ 
tives elected; that the electors should meet on the day fixed for the election of the 
President, and should transmit their votes, certified, signed, sealed, and directed, 
as the Constitution requires, to the Secretary of the United States in Congress as¬ 
sembled; that the Senators and Representatives shall convene at the time and place 
assigned; that the Senate should appoint a president for the sole purpose of receiving, 
opening, and counting the votes for President, and that after he shall be chosen the 
Congress, together with the President, should without delay proceed to execute the 
Constitution. (Madison Papers, 541, and Journal of Congress, vol. 12, pp. 133, 164, 
and vol. 4, p. 781; of the reprint.) 

Thus the convention left to the old Congress of 13 States to start 
the new Government of 9, to fix election days, and the time and 
place for beginning the new Government. The votes were to be sent 
to the secretary of the Confederation, there being no President of 
the Senate, and this last officer was to be elected pro tempore to count 
the votes and thus install a Vice President. 

An official letter to Congress was prepared to accompany the Con¬ 
stitution, which was signed on the 14th day of September, 1787. 
The results of the proceedings, which till then had been absolutely 
secret, were published on September 19. The Congress of the Con¬ 
federation then passed an ordinance recommending the calling of con¬ 
ventions in the several States to consider the ratification of the new 
Constitution, and these were called. But, as is well known, the rati¬ 
fication of the Constitution by 9 States was long delayed. Three— 
Delaware, Pennsylvania, and New Jersey—ratified in December, 1787 ; 
Georgia and Connecticut in January, 1788; Massachusetts in February; 
Maryland A])ril 28; South Carolina May 23; and New Hampsliire, the 


<f 


10 


TEEMS OF PRESIDENT^ VICE PRESIDENT, ETC. 


ninth State, on June 21, 1788. The news of the ratification by these 
9 States was then communicated to the Congress of the Confeder¬ 
ation in a long and careful letter signed by George Washington. 

It was thus by a sort of common consent (though not by the 
terms of the Constitution itself) submitted to the Congress of the 
Confederation to determine when and where the new Government 
should go into effect. It may be that the assent of the Congress of 
the Confederation was not necessary, but it was desired. The neAV 
Constitution had been so carefully drawn as that in every respect it 
strengthened rather than repealed the provisions of the Articles of 
Confederation, including all these provisions and many more. It 
was a ^^more perfect union’’ as between the States which adopted it. 
It might be argued that this more perfect union between some of the 
States was not inconsistent with the iinperfect union which already 
existed *with the others, and that if any State should not sign the 
Constitution it would still be in the Confederation with those that had 
so signed. 

In requiring the assent of nine States as a prerequisite to -the exist¬ 
ence of the Constitution, as well as in 'asking the assent of the Congress 
of the Confederation, the convention followed with the provision of 
the Articles of Confederation that ^Tio two or more States should 
enter into any treaty, confederation, or alliance whatever between 
them without the consent of the United States in Congress assembled, 
specifying accuratelv the purpose for which the same is to be entered 
into and how long it shall coaitinue” (Art. VI; par. 2), while by those 
same articles questions of war and peace, treaties and alliances, coin¬ 
ing money, raising expenses, borrowing or appropriating money, 
settling the size of the Navy or of the Army, or appointing a com¬ 
mander in chief thereof were not to l3e considered unless nine States 
should assent to the same (Art. IX,* next to last paragraph). The 
new Constitution was very largely directed to these vital questions 
and required the same ratification by nine States. 

It looks as if the new Constitution was to be so established under 
the old Ai'ticles of Confederation as to allow both to exist together 
if only part of the wStates should finally ratify the more perfect union. 

We have no report of the proceedings and debates of tiie Congress 
of the Confederation at that time, but in the resolutions which were 
])roposed and adopted this question as to what should be the status 
between the States who sliould come in under the Constitution and 
those who should stay out was wisely left in the background. It is 
apparent, however, that tliere was much discussion and dissension 
as to the place where the first meeting of the new Congress should 
take place and which wovdd be the new seat of government. In the 
various resolutions introduced between June and September there is 
also some difference as to when the election shall be held, but they all 
mention an early day in March, 1789, as the time for commencing 
proceedings under the new Constitution. It is easy to see why this 
was so. Nine States had joined by June 21, 1788, but tlie great 
State of Virginia did not ratify the Constitution till June 26, nor did 
New York till July 26. North Carolina and Rhode Island refused 
to go into the new Union at all, and did not finally join until Novem¬ 
ber 21, 1789, and May 29, 1790, respectively. 

Thus in the summer of 1788, and even in September of tliat year, 
when 11 States had ratified, it still seemed expedient to leave "time 


TERMS OF PRESIDENT^ VICE PRESIDENT^ ETC. 


11 


for the other States to lebate the matter and to come in. l^egisla- 
tnres would meet in tlie winter, and action of tlie legislatures of the 
various States was requisite not only to elect Senators but also to 
appoi]\t election days for Mem])ers (^f Congress, while in tlie absence 
of railroads and telegraphs communication with the more distant 
States was slow and difficult from the city of New York. Therefore 
it was essential to make the day so late that elections could be held, 
but it seemed equally essential that the adoption and the actual 
working of the (^institution should not be delayed until the Decem¬ 
ber of the following year, and accordingly on September 13, 1788, a 
resolution of Congress was passed, as follows: 

Whereas the convention assembled in Philadelphia, pursuant to the resolution of 
Congress of the twenty-first of February, seventeen hundred and eighty-seven, did, 
on the seventeenth day of September of the same year, report to the United States 
in Congress assembled a Constitution for the people of the United States; where¬ 
upon Congress, on the twenty-eighth of the same September, did resolve unani¬ 
mously “That the said report, with the resolutions and letter accompanying the 
same, be transmitted to the several legislatures, in order to be submitted to a con¬ 
vention of delegates, chosen in each State by the people thereof, in conformity to 
the resolves of the convention made and provided in that case;” and whereas the 
Constitution so reported by the convention and by Congress transmitted to the 
several legislatures has been ratified in the manner therein described to be suffi¬ 
cient for the establishment of the same and such ratifications duly authenticated 
have been received by Congress and are filed in the office of the Secretary: 
Therefore, 

Resolved, That the first Wednesday in January next be the day for appointing elec¬ 
tors in the several States which, before the said day, shall have ratified the said Con¬ 
stitution; that the first Wednesday in February next be the day for the electors to 
assemble in their respective States and vote for a President; and that the first Wednes¬ 
day in March next be the time and the present seat of Congress the place for com¬ 
mencing fhe })roceedings under the said Constitution. (Journal of Continental 
Congress, Vol. IV, p. 867.) 

Thus the time in wltich the Constitution should go into effect was 
fixed by a body wltich was not mentioned in that Constitution. The 
Congress of the old Confederation, which tlms gave their assent to the 
institution of this new Government within the boundaries of the old, 
ratified a new Government, which was to take effect by its own vigor, 
])ro})rio vigore, but nevertheless by the assent of the old. There is no 
statement in this resolution that the old Government sliall cease to 
exist, but there runs through all the proceedings the recognition that, 
with the institution of the new, the old one would fade away. But it 
is a strange proof of the real sense of the union of the whole nation that 
the old Government, without authority therefor in its Articles of Con¬ 
federation, should fix the day for appointing electors, and the day for 
them to assemble in their resjiective States and vote for a President, 
and the day for commencing proceedings under a new Constitution. 

Oddly enough, nothing is said, even m this resolution, as to the 
assembling of Congress on the 4th of March. The resolution simply 
says that it is the time for commencing proceedings under the new 
Constitution. By that Constitution there was to be no meeting of 
Congress until the first Monday in December. At the same time it 
was manifest, and has been recognized in the resolution of the Con¬ 
stitutional Convention, that there could be no President till the votes 
were counted in the ])resence of Congress, so that if proceedings were 
to commence at all they must commence l)y the assembling of the 
new Congress for that ])ur])ose. 


12 


TERMS OF PRESIDENT^ VICE PRESIDENT^ ETC. 


Accordingly, a Congress did assemble in New York, nominally on 
the 4th of March, 1789. On March4 but 8 of the 22 Senators appeared. 
Adjournments were made from day to day until the 11th, when an 
urgent call was sent out. Adjournments were again made from day 
to day until the 18th, when another call was sent out. The Senate 
again adjourned from day to day until April 6, when, a quorum hav¬ 
ing appeared, the vote was counted and George Washington and 
John Adams were declared elected President and Vice President, and 
committees were sent to look them up at their homes where they had 
remained. The building that was in use was that of the city of New 
York, and the city was thanked for the accommodations furnished. 

On April 18 the Vice President appeared and took the chair, and 
adjournments continued from day to day until the 25th, when the 
Houses learned that the President had received notice of his election 
and had agreed to attend at any time that the Houses would appoint. 
It was understood that, preparations could not be made before Thurs¬ 
day, April 30, and it was ordered that the President should then be 
received by both Houses in the Senate Chamber. He landed in the 
city of New York, having been conducted over the Hudson in a barge, 
and was ^Yeceived with acclamation.’^ On the 30th of April the 
minutes tell us that he was duly received by the Vice President, con¬ 
ducted to the chair, and given the oath of office, and that the crier 
made proclamation, ‘^Long live George Washington, President of the 
United States.” Thus the new Government had begun on the 4th 
of March, but it had no President until the 30th of April. The count¬ 
ing of the vote was not, as it is now, by a previous Congress, but by 
the one that was elected to take Office, and which thereupon met for 
the purpose of counting the votes and placing the President in office. 

It is probable that the fathers of th6 Constitution supposed that 
this procedure would be continued to this day. They had no dream 
that the old Congress would sit between election day and the time 
when the new Congress would have the right to take office, and ex¬ 
pected the new President to be sworn in in the presence of a Congress 
that had been elected with himself, precisely as the mayor of a city 
is sworn in in the presence of the board of aldermen who have been 
chosen at the same election. Possibly this would have continued to 
be the course of practice if it had been possible to hold elections in 
time for a meeting of the first Congress on the first Monday of Decem¬ 
ber, 1788, instead of the 4th of March, 1789. 

It has elsewhere been noted how loath the Senators were to leave 
their farms before the seed was in the ground. The Senators from 
New Jersey, just across the river, were as late as any others. They 
probably heard how many Senators were already in New York and 
knew that they could wait until a quorum was likely to be assembled, 
but the (question of the day of meeting immediately troubled the 
Congress. On September 29, after a long session in the city of New 
York, it was resolved that the next meetmg should be on the first 
Monday in January, 1790. The Congress of 1790 sat till July 16, 
when they ordered the records sent to Washington for the first Mon¬ 
day in December, 1790. Congress then sat till March 2, 1791, being 
the first short session, and passed a resolution that after the 3d of 
March the first annual meeting of Congress should be on the first 
Monday of October then next. That Congress ordered that its second 
session should be on the 5th day of November, 1792, and afterwards 


TERMS OP PRESIDENT, VICE PRESIDENT, ETC. 


13 


we find the meetings of Congress on December 2, 1793; November 3, 
1794; December 7, 1795; Decembers, 1796; May 15, 1797; Novem¬ 
ber 18, 1797; December 3, 1798, etc. 

Thus the fathers of the Constitution had intended that sessions 
should be held at the date when Congressmen took office, but the 
change from December to March, with the crops and Washington 
weather, were too much for good intentions. The first Wednesday 
of March, 1789, happened to be on the 4th, and as the Congress holds 
for two years and the President for four years, the 4th of March has 
become a fixed day without reference to the day of the week, although 
in almost all the States governors are elected for a term of years, but 
take office a certain week day of a particular month. But Wash¬ 
ington held the first Presidency only from April 30, or for a little 
over 3 years and 10 months, and not 4 years. 

Let us remark that the difficulties under which we labor were not 
the intention of the framers of the Constitution, but came from 
matters beyond their control. The delay in the ratification of the 
Constitution pushed over the beginning of our Government from 
December till March, and everything else merely followed. 

The experience of a hundred years has proved that the 4th of March 
to begin a new administration is a failure. The severity of winter 
weather prevents election then and the heat of the spring in Washing¬ 
ton prevents a session of Congress. 


Appendix B. 

[Report by Hon. William H. Crain.] 

The primary object sought to be accomplished by the ratification 
of this amendment is to change the time fixed for the commencement 
and termination of the offiicial term of Members of the House of 
Kepresentatives. The necessity for such change is obvious from a 
consideration of the evils which fiow^ from our present system of 
representation. 

The House chosen in November does not begin its work for 13 
months after its election, although its Members draw their salaries 
from the 4th of March next succeeding. For nine months there is no 
Speaker of the House; before its Members have served their full term 
their successors are cfiosen; the certain determination of the second 
session at 12, meridian, on the 4th of March often prevents the passage 
of important measures, either from lack of time, as in the case of the 
deficiency bill at the second session of the Forty-ninth (hngress, or 
because the President has not had an opportunity to examine them, 
as happened with the river and harbor bill at the close of the same 
session. The efficiency of Representatives during the short session 
is sometimes impaired.because they have failed of reelection; Repre¬ 
sentatives are chosen upon issues which may have been settled when 
they came to the Capital to enter actively upon the performance of 
their duties; the people in many instances are not represented by the 
men whom they have chosen to represent them, but defeated candi¬ 
dates hold over, and the month of December in the first session is 



14 TERMS OF PRESIDENT^ VICE PRESIDENT^ ETC. 

practically wasted by the House on account of the holiday adjourn¬ 
ments. 

Should the proposed amendment be adopted, the Members of the 
House elected in November would have about 60 days in which to 
receive their certificates of election, to prepare for contests, to arrange 
their private affairs in contemplation of a protracted absence from 
home, and to reach the Capital. There would be no holiday adjourn¬ 
ments; the House would only he about eight days without a Speaker, 
instead of nine months, as under the present system; the theory of 
the founders of the Constitution, that the Rejiresentatives should 
come “fresh from the people,’^ would be carried out, and they would 
be engaged in the settlement of the issues upon which they were 
chosen within 60 days after their election. 

The House chosen at the presidential election would assist in the 
counting of the presidential vote and elect the President in case the 
election should devolve upon the House; there would be two long 
sessions without any fixed time for adjournment, except such as 
might be agreed upon by both Houses, and there would, consequently, 
be no failure of important bills for want of time. There would be no 
election between the sessions, and therefore each Member would be as 
efficient during the second session as he was during the first. Repre¬ 
sentatives would not be placed in the dilemma of choosing between a 
temporary abandonment of their post of duty and the alternative of 
defeat at home; and they would have an opportunity, between the 
sessions, to visit their constituents and to discuss pending measures 
with them. The first session would nojt be a game of chess between 
the two parties, with the fall elections as the wager, and there would 
be no necessity for extra sessions. 

The question arises whether the adoption of a constitutional 
amendment is necessary to accomplish these results, or whether they 
may be secured by legislative enactment. Congress unquestionably 
has the power by appropriate legislation to alter the date of its annual 
meeting, and to provide for additional sessions; and several attempts 
have been made to remedy the evils hereinbefore set forth by the 
introduction of bills for that purpose. 

One of these bills provides that— 

The meeting of Congress in the year 1889, and in every second year thereafter, shall 
be on the first Monday in October, and that in the year 1888, and in every second year 
thereafter, it shall be on the second Monday in November. 

Were this bill to become a law the House chosen in November 
would not meet for 11 months afterwards. There would still be 
elections between the sessions; the House would be without a 
Speaker tor seven months, and the second sessions of Congress during 
election years would begin within a few days after the elections for 
Representatives in the succeeding House. 

Tlie only beneficial result which would follow from the passage of 
this bill would be to lengthen the short session, and to commence the 
long session two months earlier than at present. 

Another bill provides that— * 

In addition to the present regular times of meeting of Congress there shall be a 
meeting of the Fifty-first Congress, and of each succeeding Congress thereafter, at 
12 meridian on the 4th day of March, the day on which the term begins for which the 
Congress is elected, except that when the 4th of March occurs on Sunday., then the 
meeting shall take place at the same hour on the next succeeding day. 


TERMS OF PRESIDENT, VICE PRESIDENT, ETC. 


15 


The ()iily advantage over the present sy stem which the passage of 
this hill would afford, would be found in the extra session at the 
beginning of the term of ea(*h new Congress; and this would be offset 
by the inach isahility of bringing Hepresentatives from all })arts of 
the country to the Capital at an unseasonable time of the year, and 
by the further fact, that little or nothing would he accomplished at 
such session. Moreover, there would still he elections between the 
regular annual sessions, witli all the attendant evils. 

In the opinion of the committee the only practicable way by which 
the desired results can be attained is by the curtailment of the term of 
office of some future House of Re})resentatives; and in this connection 
the committee considered the question wliether this can be done by 
legislative enactment or whether a change in the organic law is neces¬ 
sary. 

The committee believe that a constitutional amendment is essential; 
because it concludes that, under the Constitution, the official term of 
the Members of the House of Re})resentatives is fixed at two years, and 
that the 4th day of March is the time of its commencement and termi¬ 
nation. In support of this view of the question, the committee cite the 
following opinion of Hon. George S. Boutwell, late xVttorney General of 
the United States: 

Washington, D. C., April 22, 1881. 

Dear Sir; Since our interview and your presentation of the question, I have made 
an examination for the purpose of finding the authority or reason for the expiration 
of each Congress on the 4th day of IMarch, there having been no statute or constitu¬ 
tional pro\dsion, under the existing Government, requiring such practice. 

On the 13th of September, 1787, Mr. Johnson, of Connecticut, from the Committee on 
Style, reported to the Federal convention that formed the Constitution of the United 
States two'resolutions, the second of which was as follows: 

Resolved, That it is the opinion of this convention that as soon as the conventions 
of nine States shall have ratified this Constitution, the United States, in Congress, 
shall fix a day on which electors shall be appointed by the States which shall have 
ratified the same, and a day on which the electors shall assemble to vote for President, 
and the time and place for commencing the proceedings under this Constitution; that 
after such publication the electors should be appointed, and the Senators and Repre¬ 
sentatives elected; that the electors should meet on the day fixed for the election of 
the President, and should transmit their votes certified, signed, sealed, and directed, 
as the Constitution requires, to the Secretary of the United States in Congress assem¬ 
bled; that the Senators and Representatives shall convene at the time and place 
assigned; that the Senate should appoint a president for the sole purpose of receiving, 
opening, and counting the votes for President, and that after he shall be chosen the 
Congress, together with the President, should, without delay, proceed to execute the 
Constitution. 

This resolution, which appears to have been adopted on the 17th of September, 
1787, may be found in the Madison Papers containing the debates upon the Confed¬ 
eration and the Federal Constitution, page 541; and also in the Journal of Congress, 
volume 12, pages 163 and 164, of the original edition; and volume 4, page 781, of.the 
edition of 1823. 

The Continental Congress, at a session held September 12, 1788, adopted the fol¬ 
lowing resolution: 

Resolved, etc., That the first Wednesday in January next be the day for appointing 
electors in the several States which before the said day shall have ratified the said 
Constitution; that the first Wednesday in February next be the day for the electors 
to assemble in their several States and vote for a President; and that the first Wed¬ 
nesday in March next be the time and the present seat of Congress the place for com¬ 
mencing proceedings under the said Constitution.” 

The preamble to this resolution recites a portion of the resolution of September 17, 

1787, but refers to it as having been passed on the 28th September, 1787. This last 
resolution may be found in the Journal of Congress, edition of 1823, volume 4, page 866. 

It thus appears that the Continental Congress, by the resolution of September 12, 

1788, and acting under and by virtue of the authority conferred upon it by the resolu¬ 
tion of the Constitutional Convention of September 17, 1787, declared that the first 


16 


TERMS OF PRESIDENT, VICE PRESIDENT, ETC. 


Wednesday in March, 1789, should be the time for commencins: proceedings under the 
Constitution. The first Wednesday of March in that year fell on the fourth day of 
that month. 

The first paragraph of the second section of the first article of the Constitution pro¬ 
vides that the House of Representatives shall be composed of Members chosen every 
second year by the people of the several States. This implies necessarily that the term 
is for two years, and as the term of the Members elected to the First Congress com¬ 
menced on Wednesday, the 4th day of March, 1789, their term expired by opera¬ 
tion of law on the 4th day of March, 1791; and, by a like necessity, the term of their 
successors commenced on the same day. As that provision of the Constitution has 
been operative without modification from that day to this, it has not been possible to 
make any change in the commencement or ending of a Congress, or of the terms of 
Members of the House of Representatives. 

It thus appears also that a term of Congress is as fixed as though specific provi¬ 
sion had been made in the Constitution that it should commence on the 4th day of 
March, and terminate on the 4th day of March at the end of every two years. 

Yours, very respectfully, 

George S. Boutw^ell. 

Henry H. Smith, 

Journal Clerk House of Representatives. 


The question whether Congress has the power to curtail the official 
term of the House of Representatives seems never to have been pre¬ 
sented for judicial consideration, nor does it appear to have been 
directly answered by any of the commentators on the Federal Con¬ 
stitution, but it seems to have been uniformly assumed by writers on 
the subject that the effect of Article I, section 2, of the Constitution, 
is to put it out of the power of Congress to either abridge or extend 
the term of two years there prescribed. The section referred to reads 
as follows: 

The House of Representatives shall be composed of Members chosen every second 
year by the people of the several States, and the electors in each State shall have the 
qualifications requisite for electors of the most numerous branch of the State legisla¬ 
ture. 

We have some knowledge of the contemporar}^ construction put on 
this section, as will appear from the following extract: 

The important distinction, so well understood in America, between a constitution 
established by the people and unalterable by the Government and a law established and alter¬ 
able by the Government seems to have been little understood and less observed in any 
other country. Wherever the supreme power of legislation has resided, has been 
supposed to reside also a full power to change the form of the government. Even in 
Great Britain, where the principles of political and civil liberty have been most dis¬ 
cussed, and where we hear most of the rights of the constitution, it is maintained that 
the authority of the Parliament is transcendent and uncontrollable, as well with regard 
to the constitution as the ordinary objects of legislative provision. They have, accord¬ 
ingly, in several instances actually changed, by legislative acts, some of the most fun¬ 
damental articles of the Government. They have in particular, on several occasions, 
changed the period of election; and on the last occasion not only introduced septen¬ 
nial in place of triennial elections, but by the same act continued themselves in 
place four years beyond'the term for which they were elected by the people. 

An attention to these dangerous practices has produced a very natural alarm in the 
votaries of free government, of which frequency of elections is the corner stone, and 
has led them to seek for some security to liberty against the danger to which it is ex¬ 
posed. Where no constitution paramount to the Government either existed or could 
be obtained, no constitutional security similar to that established in the United States 
was to be attempted. Some other security, therefore, was to be sought for; and 
what better security would the case admit than that of selecting and appealing to some 
simple and familiar portion of time as' a standard for measuring the danger of innova¬ 
tions, for fixing the national sentiment, and for uniting the patriotic exertions? The 
most simple and familiar portion of time applicable to the subject was that of a year; 
and hence the doctrine has been inculcated by a laudable zeal to erect some barrier 
against the gradual innovations of an unlimited government that the advance toward 
tyranny was to be calculated by the distance of departure from the fixed point of an- 


TERMS OF PRESIDENT, VICE PRESIDENT, ETC. 


17 


nual elections. But what necessity can there be of applying this expedient to a gov¬ 
ernment limited, as the Federal Government will be, by the authority of a paramount 
constitution? Or who will pretend that the liberties of the people of America will 
not be more secure under biennial elections unalterably fixed by such a constitution thain 
those of any other nation would be where elections vrere annual or even more fre¬ 
quent, but subject to alterations by the ordinary power of the government? (The 
Federahst, No. 53.) 

That the framers of the Constitution intended that the term of Mem¬ 
bers of both branches of Congress should be fixed by that instrument, 
will appear from an examination of the debates in the Constitutional 
Convention. When this question was under consideration, Mr. 
Randolph offered the following resolution: 

Resolved, That the members of the first branch of the National Legislature ought to 
be elected by the people of the several States every-for the term of-, etc. 

Mr. Sherman and Mr. Ellsworth moved to fill the blank left in said 
resolution for the periods of electing the members of the first branch 
with the words ‘‘every year.’’ Mr. Rutledge proposed “every two 
years.” Mr. Jenifer proposed “every tliree years.” 

Mr. Madison, in seconding the motion for three years, said: 

Instability is one of the great vices of our republics to be remedied. Three years 
will be necessary in a Government so extensive for Members to form any knowledge of 
the various interests of the States to which they do not belong and of which they can 
know but little from the situation and affairs of their own. One year will almost be 
consumed in preparing for and traveling to and from the seat of national business. 

Mr. Gerry remarked that— 

The people of New England will never give up the point of annual elections. They 
know of the transition made in England from triennial to septennial elections, and 
Will consider such an innovation here as the prelude to a like usurpation. He con¬ 
sidered annual elections as the only defense of the people against tyranny. He was 
as much against a triennial House as against a hereditary Executive. 

On the question for the triennial election of the Flouse, seven States 
voted “aye,” and four voted ‘‘no.” 

There was a diversity of opinion about the duration of the term 
which should be fixed for Members of the Senate, and seven years 
were originally agi'eed upon; but the term of six years was finally 
substituted. 

The term of Members of the House being again under consideration, 
Mr. Randolph moved to strike out “three years” and insert “two 
years.” He would have preferred annual to biennial elections but 
for the extent of the United States and the inconvenience which 
would, result from them to the Representatives of the extreme parts 
of the empire. 

Mr. Ellsworth was opposed to “three years,” and moved that “one 
year” be inserted. 

Mr. Madison was persuaded that annual elections would be extremely 
inconvenient and apprehensive that biennial would be too much so. 
He did not mean inconvenient to the electors, but to the Representa¬ 
tives. They would have to travel seven or eight hundred miles from 
the distant parts of the Union. Besides, none of those who wished to 
be reelected would remain at the seat of Government, confiding that 
their absence would not affect them. 

The Members of Congress had done this, with few instances of dis¬ 
appointment. But as the choice was here to be made by the people 
themselves, who would be much less complacent to individuals, and 
much more susceptible of impressions from the presence of a rival 

H. Kept. 239, 62-2-2 




18 


TEEMS OF PRESIDENT^ VICE PEESIDENT, ETC. 


•candidate, it must be supposed that the Members from the most dis¬ 
tant States would travel backward and forward at least as often as 
the elections should be repeated. Much was to be said also on the 
time requisite for new Members, who would alwajs form a large pro¬ 
portion, to acquire that knowledge of the affairs of the States in 
general, without which their trust could not be usefully discharged. 

Mr. Sherman preferred annual elections, but would be content with 
biennial. Col. Hamilton urged the necessity of three years. There 
ought to be neither too much nor too little dependence on the popular 
sentiments. The British House of Commons were elected septennially, 
yet the democratic spirit of the Constitution had not ceased. Fre¬ 
quency of elections tended to make the people listless to them, and to 
^facilitate the success of little cabals. This evil was complained of in 
all the States. In Virginia it had been lately found necessary to force 
the attendance and voting of the people by severe regulations. 

On the question for striking out ‘Hhree years’^ seven States voted 
yea, three States voted no, and one State was divided. ^^Two years’' 
was then inserted by a unanimous vote of the House. No further 
action was taken by the convention upon this question, but it was 
submitted with the remainder of the Constitution to a committee 
on style, which reported it in the language in which it now appears 
in the Constitution. 

After a full consideration of the question the committee are of 
opinion that the language of Article I, section 2, of the Constitution, 
^^The House of Representatives shall be composed of Members chosen 
every second year by the people of the several States," means that 
the duration of the term of said House shall be two years; that the 
Continental Congress was fullv empowered by the resolution of 
the convention, set out in the letter of Attorney General Boutwell, 
to determine when said term of two years of the first House should 
begin; and that said Congress did establish the 4th day of March 
as the time for the commencement of said term. 

The committee are also of the opinion that the commencement and 
termination of each succeeding House of Representatives was thereby 
established, and can only be altered by an amendment to the Consti¬ 
tution, each Representative being entitled to his full term of service, 
and the people to their constitutional representation. 

There is no designation of the Congress which will be affected by 
the amendment, as it can not be determined when it will be ratified 
by the requisite number of States. 

The portion of the amendment which establishes the time for the 
annual meeting of Congress is incorporated in order to enable the 
Congress selected after its ratification to meet at the time appointed 
without any legislation upon the subject. 


Appendix C. 

[Article by Mr. J. Hampden Daugherty.] 

Upon the subject of amending the Constitution both Congress and 
the people usually betray mental inertia. The first 10 amendments 
followed so closely upon the ratification of the Constitution that they 
may almost be treated as part of its original text. The convention 



TERMS OF PRESIDENT^ VICE PRESIDENT, ETC. 


19 


of a number of States had, in adopting tlie Constitution, “expressed 
a desire, in order to prevent misconstruction or abuse of its powers, 
that further declaratory and restrictive clauses should be added/' 
and therefore these 10 amendments were introduced in Congress 
by Mr. Madison, passed by both Houses, and ratified by the legisla¬ 
tures of 11 States. With the exception of this addition of the So- 
called bill of rights, it has taken some extraordinary crisis or a civil 
war to bring about amendment. The eleventh amendment, which 
protected a State from suit by a citizen of another State, sprang from 
the ultra state-sovereignty feeling that was almost universal in the 
early part of the nineteenth century. The twelfth amendment was 
demanded because the controversy about the Jefferson-Burr vote 
showed the Constitution to be vitally and dangerously defective in a 
particular which threatened the perpetuation of executive govern¬ 
ment. Then the Constitution stood unchanged for upward of 60 
years, and the remaining three amendments emerged from the fires 
of the Civil War. 

As early as 1823 Jefferson declared that the States had grown so 
numerous as to render amendment extremely difficult, and to-day it 
looks at times as though the Constitution had crystallized into per¬ 
manent form, alterable only by a political cataclysm. But with all 
this reluctance to formal modification, the Constitution is not for 
other purposes so rigid as might be supposed, for, as Mr. Bryce has 
well shown, it is developed by practice and usage and by interpreta¬ 
tion by the courts. 

For many years there has rarely been held a session of Congress 
at which amendments have not been presented. These have been 
referred to the appropriate committees and there, with one exception, 
allowed to sleep undisturbed. The proposed income-tax amendment, 
really part of the President’s tariff program, is the only amendment 
since reconstruction that has secured the two-thirds vote in each 
House needed for its submission to State legislatures. Profoundly 
important as this subject is, interest in it has not risen to enthusiastic 
pitch. Nor has the election of Federal Senators by the people, 
though advocated in party platforms, ever met with acceptance in 
both Houses of Congress. 

In the face, then, of habitual congressional lethargy, to urge further 
amendments may seem hopeless. There are, however, at least two, 
the necessity for which is widely recognized. The first would remedy 
a seeming defect—the failure of the Constitution to provide for suc¬ 
cession to the Presidency if the President elect should die. The 
second would postpone the date of the presidential inauguration to a 
more propitious season, and would require the assembling of Congress 
shortly after the commencement of the presidential term. Neither 
of these would excite partisan opposition. Surely, no one could 
question the necessity of eliminating all possibility of doubt regarding 
ihe succession to the chief executive office in the Nation. And, as 
many persons have sacrificed health or life in witnessing an inaugu¬ 
ration, why continue to subject participants or spectators to unnec¬ 
essary exposure? It would be an act of humanity, as well as of 
wisdom, to have the celebration at a less inclement time. I shall 
in this article discuss briefly the desirability of settling the presidential 
succession conclusively; and, as many persons wonder why so simple 
a thing as a change m inauguration day should require an amendment 


20 


TERMS OF PRESIDENT^ VICE PRESIDENT, ETC. 


of the organic law, I purpose to show how the date March 4 has entered 
into the Constitution. Explanation of this fact may render easier 
the formulation of an amendment, should public sentiment strongly 
favor it. 

First. Presidential succession ,—The Constitution, m subdivision 6, 
section 1, Article II, itself devolves upon the Vice President the powers 
and duties of the President in the event of tlie latter’s removal from 
office, his death, resignation, or disability. In the second place, it 
provides that Congress may legislate should any one of these contin¬ 
gencies happen in the case of both President and Vice President. 
The exact language of the Constitution is: 

In case of the removal of the President from office, or of his death, resignation, or 
inability to discharge the powers and duties of the said office, the same shall devolve 
on the Vice President; and the Congress may by law provide for the case of removal, 
death, resignation, or inability, both of the President and Vice President, declaring 
what officer shall then act as President, and such officer shall act accordingly until 
the disability be removed or a President shall be elected. 

Several times death has overtaken a Chief Executive in office; 
there has never been a resignation or a removal; and what constitutes 
^Tnability” is a j)erplexing and interesting question. In the judg¬ 
ment of able constitutional lawyers, Garfield, who lay stricken from 
July 2, 1881, to September 19, 1881, the day of his death, was in a 
condition of inability, which demanded that the Vice President should 
assume his duties: nevertheless, Garfield remained President until 
he died. McKinley was com|)letely disqualified for his office from 
the moment when he sank into the arms of his friends at Buffalo, 
after the discharge of the assassin’s bullet, and the disability lasted 
until the hour of his death. Yet in spite of these two experiences 
Congress has never attempted to define inability, not has it the con¬ 
stitutional power to do so, save when the disability affects both Presi¬ 
dent and Vice President. To provide for the double contingency, the 
lack of both a President and Vice President, the act of January 19,1886, 
commonly known as the presidential succession law, was passed, under 
which the Secretary of State, or some other member of the Cabinet 
in an enumerated order, shall serve as President until the removal of 
the disability or the election of a new President. But if a President 
elect should die this act would not apply, and the baffling query 
would be, “Who, if such a catastrophe should happen, would become 
President; who should be inaugurated on March 4 ?” 

A just analysis requires consideration of three casesthe only 
possible ones: 

(1) Death occurring between the date of the popular election and 
the close of the meeting of the electoral colleges on the second Monday 
of January. 

(2) Death occurring after the vote in the electoral colleges and 
before the completion of the electoral count in the two Houses of 
Congress on the second Wednesday of February. 

(3) Death after the count on the second Wednesday of February 
and before noon of March 4. In this case, as the vote has been 
counted and the result announced, there actually is a constitutional 
President elect. 

First. If the candidate for the chief magistracy of the Nation 
should die before the assembling of the electoral colleges on the 
second Monday of January, how should they vote? Literally, the 


TERMS OP PRESIDENT^ VICE PRESIDENT^ ETC. 21 

electors would have absolute control of the selection. In strictness 
there is as yet no President elect; the electoral colleges have ])lenary 
power of choice and, upon the original theory of the rights and duties 
of presidential electors, they may elect whomsoever they please. 
The case supposed is not purely imaginary, for Greeley, the candidate 
of the Democratic Party for the presidency in 1872, died before the 
colleges met to vote, and while the electors chosen in some of the 
States to name him cast their ballots at will for other candidates, 
votes were actually given for him in the Georgia college. The Senate 
decided that all votes for Greeley should be counted, notwithstanding 
his death, but the House resolved that they should not be, ^The 
said Horace Greeley having died before the votes were cast,^^ and, 
under the harsh twenty-second joint rule, which forbade the counting 
of electoral votes if both Houses did not agree to count them, the 
three Greeley votes from Georgia were rejected, owing to the failure 
of the two Houses to concur. If a choice by the electoral colleges 
were instantly to be followed by induction into the Presidency, there 
would be no possible need for amendment of the (Constitution, for no 
amendment should impair the absolute freedom of choice by electors, 
unless it is the plain will of the people to take their theoretical power 
away. 

In the second case, if the successful candidate should die after the 
voting by the colleges and the transmission of their returns to the 
President of the Senate, but before the meeting of the two Houses on 
the second Wednesday of February, the counting of the votes would 
be necessary, despite the death, but the question would nevertheless 
arise, ‘‘Who would become PresidentP’ It may fairly be said that 
there is a President elect as soon as the colleges have voted, although 
the formal count which is to be made on the second Wednesday of 
February has not yet been had. 

In the third case, the President elect might die between the second 
Wednesday of February and the 4th day of March, when the same 
question would arise as in the case of his death between the second 
Monday of January and the second Wednesday of February, the only 
difference being that in this case he would have survived the consti¬ 
tutional announcement of his election. If in this brief interval he 
should be snatched from his prospective honor, who would succeed 
him? Cases 2 and 3 may be treated as practically identical. The 
electoral colleges could not be reconvened, because, upon the hypoth¬ 
esis, they would have already met, voted, and transmitted their lists 
to the seat of government. The present law of Congress makes no 
provision for their reconvening, nor could it constitutionally do so, 
and the day fixed for their meeting has passed. Each college would, 
as the lawyers say, be functus officio. It would be a most elastic 
interpretation of the constitutional clause above quoted that would 
apply it to the death of a President elect. Hence in cases 2 and 3 it 
seems apparent that there is a genuine casus omissus. If we recur to 
the clause quoted above from the Constitution, we shall be unable to 
escape from the conclusion that the Constitution fails to declare who 
shall become Chief Executive if both the President elect and the Vice 
President elect should die; and it fails to authorize Congress to pro¬ 
vide for this contingency by legislation, for it empowers Congress to 
act only when the actually existing President and Vice President 


22 


TERMS OF PRESIDENT^ VICE PRESIDENT^ ETC; 


shall both have vacated office. While there is far more likelihood of 
the death of the President elect than of the death of both President 
elect and Vice Presidentelect, yet experience has taught the Nation 
how possible is a catastrophe that might remove both from life. 

It may be urged that in the case of the death of the President 
elect the election of his successor would devolve upon the House of 
Representatives, the vote to be taken by States. This argument is 
fallacious, for the only contingency in which the duty of election 
falls to the House is when no person has a majority of the whole num¬ 
ber of electors* appointed. In the supposititious case under consid¬ 
eration a majority of the electors’ votes would have been given for 
a candidate dying before the joint convention of the Houses assem¬ 
bled, and so in the last analysis the House of Representatives could 
not constitutionally make the choice contemplated by the Constitu¬ 
tion. The twelfth amendment shows plainly that the powers of 
the House and of the Senate in the choice of President are definitely 
restricted. 

Article XII. The electors shall meet in their respective States and vote ballot 
for President and Vice President, one of whom, at least, shall not be an inhabitant of 
the same State with themselves; they shall name in their ballots the person voted for 
as President, and in distinct ballots the person voted for as Vice President, and they 
shall make distinct lists of all persons voted for as President and of all persons voted for 
as Vice President, and of the number of votes for each, which lists they shall sign and 
certify, and transmit sealed to the seat of the Government of the United States, directed 
to the President of the Senate; the President of the Senate shall, in the presence of the 
Senate and House of Representatives, open all the certificates, and the votes shall then 
be counted; the person having the greatest number of votes for President shall be the 
President, if such number be a majority of the whole number of electors appointed; 
and if no person have such a majority, then from the persons having the highest num¬ 
bers, not exceeding three, on the list of those voted for as President, the House of 
Representatives shall choose immediately, by ballot, the President, But in choosing 
the President the vote shall be taken by States, the representation from each State 
having one vote; a quorum for this purpose shall consist of a Member or Members from 
two-thirds of the States, and a majority of all the States shall be necessary to a choice. 
And if the House of Representatives shall not choose a President, whenever the right 
of choice shall devolve upon them, before the fourth day of March next following, 
then the Vice President shall act as President, as in the case of the death or other 
constitutional disability of the President. The person having the greatest number of 
votes as Vice President shall be the Vice President, if such number be a majority of 
the whole number of electors appointed, and if no person have a majority, then from 
the two highest numbers on the list the Senate shall choose the Vice President; a 
quorum for the purpose shall consist of two-thirds of the whole number of Senators, 
and a majority of the whole number shall be necessary to a choice. But no person 
constitutionally ineligible to the office of President shall be eligilde to that of Vice 
President of the United States. 

The view I have presented that the Constitution fails to provide 
for the succession to the Presidency in the event of the death of both 
President elect and Vice President elect, and in case of the death of 
the President elect alone, is not novel. It has been entertained by a 
number of statesmen, especialty in recent j^ears. Mr. Albert *W. 
Paine, of Maine, called attention to the defect in 1897 , and with the 
idea of obviating it Senator Frye, of Maine, in December of that 3^ear, 
presented to the Senate a resolution for an amendment to the Consti¬ 
tution. This amendment was referred to the eludiciary Committee 
of the Senate, modified b}^ it, reported to the Senate, there discussed, 
and adopted hy a two-ttirds vote. From the Senate it was trans¬ 
mitted to the House of Representatives and referred to the Judiciary 
Corhmittee of the House, which seems never to have reported it. So 


TERMS OF PRESIDENT, VICE PRESIDENT, ETC. 


23 


profound^ impressed with the danger was Senator Hoar, of Massa¬ 
chusetts, that he introduced the proposed amendment into the Senate 
on Deceinber 4, 1901. The Senate passed it by the requisite vote 
and sent it to the House of Representatives, where, on February 1, 
1902, it was referred to the House committee. The House committee, 
however, never reported it. Thus, although on two occasions two- 
thirds of the Senate were convinced of the importance of the amend¬ 
ment, we are left entirely in the dark as to the views of the House 
Judiciary Committee regarding it. The members of the committee 
naay have thought that there was no casus omissus in the Constitu¬ 
tion, or may have been dissatisfied with the language of the Senate 
amendment, yet unable to improve its phraseology. The amend¬ 
ment twice passed by the Senate was in the following form: 

That the following article be proposed to the legislatures of the several States as an 
amendment to the Constitution of the United States as part of the Constitution, 
namely: 

“In"all cases not provided for by Article II, clause 5, of the Constitution, where 
there is no person entitled to discharge the duties of the ofl&ce of the President, the 
same shall devolve upon the Vice President. The Congress may by law provide for 
the case where there is no person entitled to hold the office of President or Vice Presi¬ 
dent, declaring what officer shall then act as President, and such officer shall act 
accordingly until the disability shall be removed, or a President shall be elected.’' 

After the popular election of 1908 discussion of this question was 
had in the public press, with the result that the proposed amendment 
was again introduced into the Senate, and again referred to its Judi¬ 
ciary Committee. Although the subject seems not to have awakened 
sufficient public interest to insure its consideration by the House of 
Representatives, an amendment to remedy the trouble ought, never¬ 
theless, again to be presented to Congress, and agitation of the subject 
should be continueci until proper amendment shall have been obtained 
or the country become convinced by competent expert opinion that 
amendment is unnecessary. 


24 


TKKMS OF PKESTDENT^ VICE PRESIDENT^ ETC. 


Appendix D. 


Statement showing nuixwmm and minimum te7nperatures, prevailing u ind direction, and 
barometer reduced to sea level at Washington, D. C., Mar. 4 and Apr. SO, 1892 to 1911. 


Years. 

Mar. 4. 

1 

1 ■ Apr. 30. 

1 

1 

Maxi¬ 

mum 

tem¬ 

pera¬ 

ture. 

Mini¬ 

mum 

tem¬ 

pera¬ 

ture. 

Wind 

direc¬ 

tion. 

Barom¬ 

eter, 

8 a. m. 

Barom¬ 

eter, 

8 p. m. 

1 

Maxi¬ 

mum 

tem¬ 

pera¬ 

ture. 

Mini¬ 

mum 

tem¬ 

pera-, 

ture. 

Wind 

direc¬ 

tion. 

Barom¬ 

eter, 

8 a. m. 

I 

Barom¬ 
eter, 
,8p. m. 

1892. 

59 

35 

NW. 

30. 02 

29. 87 

68 

46 

NW. 

30. 40 

30. 34 

1893. 

32 

24 

NW. 

29. 44 

29. 88 

73 

55 

sw. 

29. 98 

30. 08 

1894. 

61 

29 

W. 

30. 54 

30. 49 

71 

45 

s. 

30. 44 

30. 39 

1895.. 

55 

37 

S. 

29. 88 

29. 83 

61 

50 

NE. 

30.14 

30.12 

1896. 

40 

24 

NW. 

30.13 

30. 07 

65 

54 

E. 

30.15 

30.16 

1897. 

47 

34 

N. 

30. 42 

30.47: 

75 

51 

.E. 

30. 00 

29. 90 

1898. 

39 

33 

N. 

30. 14 

30.03 

' 72 

48 

SW. 

30.13 

30.11 

1899. 

49 

36 

E. 

29. 96 

29. 84 i 

81 

57 

SE. 

30. 24 

30.11 

1900. 

56 

27 

S. 

30. 40 

30.18 

82 

52 

S. 

29. 90 

29. 70 

1901. 

51 

36 

NW. 

30. 06 

29. 76 

87 

45 

s. 

30. 22 

29. 96 

1902. 

41 

30 

W. 

30. 06 

30.02 ! 

83 

62 

w. 

30. 08 

30. 04 

1903. 

58 

30 

vSE. 

30. 45 

30. 34 

89 

50 

s. 

30. 04 

29. 76 

1904. 

32 

24 

NW. 

30. 43 

30. 61 

67 

51 

NW. 

29. 81 

29. 80 

1905. 

48 

29 

NW. 

29. 58 

30.10 ' 

75 

51 

NW. 

29. 92 

29. 92 

1906. 

52 

36 

NW. 

29. 78 

29. 97 1 

87 

55 

NW. 

30.04 

29.96 

1907. 

44 

26 

NW. 

30. 20 

30. 20 

78 

55 

s. 

30. 01 

29. 86 

1908. 

46 

26 

NE. 

30. 51 

30.45 1 

68 

42 

SE 

30 19 

30 30 

1909. 

35 

29 

NW. 

29. 30 

29.62 

71 

44 

S. 

29. 80 

29. 67 

1910. 

60 

34 

E. 

30. 27 

30.24 

. 92 

57 

s. 

29. 77 

29. 77 

1911. 

43 

31 

N. 

30. 03 

30. 31 

78 

59 

s. 

29. 87 

29. 77 



























































TEKMS OF PRESIDENT, VICE PRESIDENT, ETC. 25 


Statement of deaths occurring in the District of Columbia from pneumonia, bronchitis, 
and congestion of the lungs during March and May of each year from 1891 to 1910. 


Year. 

Deaths during March. 

Deaths during May. 

■ 

I’neu- 

monia. 

Bron¬ 

chitis. 

Conges¬ 
tion of 
lungs. 

Pneu¬ 

monia. 

Bron¬ 

chitis. 

Conges¬ 
tion of 
lungs. 

1891. 

80 

30 

13 

42 

27 

9 

1892. 

67 

26 

17 

23 

17 

8 

1893. 

95 

30 

13 

45 

19 

12 

1894. 

77 

29 

16 

28 

11 

6 

1895. 

75 

17 

12 

24 

8 

11 

1896. 

62 

21 

8 

23 

8 

10 

1897. 

76 

19 

13 

30 

1 

7 

1898. 

73 

15 

3 

31 

10 

3 

1899. 

62 

17 

8 

34 

11 

7 

1900. 

70 

10 

8 

29 

12 

4 

1901. 

78 

17 

10 

21 

8 

6 

1902. 

59 

7 

10 

34 

12 

7 

1903. 

72 

18 

9 

38 

12 

5 

1904. 

87 

21 

5 

40 

12 

6 

1905. 

84 

11 

5 

■ 35 

17 

3 

1906. 

69 

13 

4 

35 

9 

5 

1907. 

78 

23 

5 

40 

13 

3 

1908. 

83 

21 

7 

46 

9 

1 

1909. 

96 

15 

4 

46 

9 

4 

1910. 

120 

16 

3 

36 

10 









Total*. 

1,563 

376 

173 

680 

235 

117 


Wm. C. Woodwaed, M. D., 

Health Officer. 


May 16, 1911. 


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